Computer Discovery in Child Pornography Cases: You May Not Be Entitled to Everything, But You’re Entitled to More Than They Usually Give

Defense counsel and experts aren’t entitled to a copy of the child pornorgraphy on a seized computer.

Defense counsel and experts are entitled to a copy of everything else on a seized computer.

Seek a redacted hard drive; it can help a lot with trial preparation and might even help your expert.

NOW THE BLOG:

In today’s post, I want to touch on another discovery issue that I think even defense attorneys have overlooked – one specific to child pornography cases. Prior to passage of the Adam Walsh Act in 2006, defense attorneys and their forensic computer experts generally received – subject to a protective order – a complete forensic copy of the computer hard drive – including the child pornography – so the defense expert could do a complete and effective forensic analysis of the hard drive in his own lab with his own tools on his own schedule and on such short notice as he and the other members of the defense team might find necessary. Requiring such discovery was the practice of most, if not all, courts until passage of the Adam Walsh Act, as illustrated by the opinion by Ninth Circuit Chief Judge Kozinski, sitting by designation in the district court, in United States v. Hill, 322 F. Supp. 2d 1081, 1091-1094 (C.D. Cal. 2004). See alsoUnited States v. Cadet, 423 F. Supp. 2d 1, 3 (E.D.N.Y. 2006);United States v. Fabrizio, 341 F. Supp. 2d 47, 49 (D. Mass. 2004).

The Adam Walsh Act put a halt to this general practice, by including a new subsection in 18 U.S.C. § 3509 that prohibits providing a defense copy of “any property or material that constitutes child pornography” so long as “the [g]overnment [I always like to use a small “g” rather than the big “G” the statute uses] makes the property or material reasonably available to the defendant.” 18 U.S.C. § 3509(m). This statute has been upheld against numerous facial defense challenges. SeeUnited States v. Wright, 625 F.3d 583, 613-19 (9th Cir. 2010); see alsoUnited States v. Shrake, 515 F.3d 743, 745 (7th Cir. 2008); United States v. Spivack, 528 F. Supp. 2d 103 (E.D.N.Y. 2007); United States v. Flinn, 521 F. Supp. 2d 1097 (E.D. Cal. 2007); United States v. Doane, 501 F. Supp. 2d 897 (E.D. Ky. 2007); United States v. O’Rourke, 470 F. Supp. 2d 1049 (D. Ariz. 2007); United States v. Johnson, 456 F. Supp. 2d 1014 (N.D. Iowa 2006). And making a copy available to the defense expert in a private room at a government facility has generally been deemed to be making the evidence “reasonably available,” though there are two cases in which district courts have held availability at a government facility wasn’t good enough. In one of those cases, the district court held that the defense had made a sufficient showing that the specialized analysis its expert wanted to conduct couldn’t be done in a government facility, seeUnited States v. Knellinger, 471 F. Supp. 2d 640, 645 (E.D. Va. 2007), and in the other case, the district court initially ordered that defense review take place in a government facility but later ordered the defense be provided with its own copy when the government was insufficiently cooperative with the defense expert, see the unpublished order in United States v. Winslow, No. 3:07-CR-00072-TMB-DMS (D. Ak. Jan. 28, 2008), attached here.

You should keep these latter opinions in mind if you have an atypical case or uncooperative government prosecutors or agents (make sure and document any and all lack of cooperation), but I want to focus this post on another issue that’s been overlooked in the litigation over the broader issues. That’s the defense right to the parts of the computer hard drive that don’t contain child pornography. Section 3509(m) applies only to the “property or material that constitutes child pornography.” Other material thus remains subject to the general provisions of Rule 16 of the Federal Rules of Criminal Procedure, which require the government to provide the defense with a copy of all documents, tangible objects, and data that are “material to preparing the defense,” Fed. R. Crim. Pro. 16(a)(1)(E)(i), and/or were “obtained from or belong[ ] to the defendant,” Fed. R. Crim. Pro. 16(a)(1)(E)(iii).

Most of what’s on a defendant’s computer will be material that isn’t child pornography, and it may be useful to have a copy of at least that to work with in the privacy and flexibility of the defense attorney’s or defense expert’s own offices. Date and time information about non-pornographic files in the same folder as or otherwise related to the pornographic files, such as the initial photos in a series portraying a child undressing; word processing or other files that provide information about users and their access; and internet usage information that isn’t the child pornography itself could all be potentially useful for trial preparation or other analysis and much easier to work with in one’s own office without scheduling access ahead of time through the government.

With this in mind, I’ve filed motions for what I’ve called a “redacted hard drive” and had them granted in at least two cases – or in one instance voluntarily agreed to when the judge indicated she was inclined to grant it. And while I’m not sure a forensic computer expert will find such a redacted hard drive real useful for technical forensic analysis (though I think it’s worth encouraging them to use it for some tentative backup investigation to be confirmed with the unredacted drive), I found the redacted hard drives I got at least somewhat useful in preparing for trial and/or hearings on motions. I’m not going to publish the case titles with my clients’ names in this public blog on the Internet, but feel free to contact me if you’d like the case information for filing in a motion that won’t be so widely out there “on the web.”

This is an important way of limiting the Adam Walsh Act provision to just what it was intended to prevent disclosure of – the child pornography – without preventing disclosure of the rest. It’s sort of the opposite of throwing the baby out with the bathwater; they’re entitled to keep the baby, but they have to throw us the bathwater. (Don’t forget to duck, though.)

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About the Blog

Shortly before I moved on after 28 years of work as a Federal Public Defender, one of the younger attorneys I had the honor to mentor forwarded me an e-mail he’d received from an Assistant United States Attorney. The e-mail complained that my younger colleague was being extremely frustrating, that my colleague was making far too much of a “simple little case,” that the client in the case was going to be deported no matter what, and that my colleague was forcing the prosecutor to “expend a tremendous amount of effort” on what the prosecutor characterized as a “silly issue.” He ended his e-mail by asking, “Have you been hanging out with Carl Gunn?”

Some people would have been insulted by this, but I felt rather proud. Making as much as we can out of what the government sees as “simple little cases,” litigating issues despite the government’s view that they might be “silly,” and “expend[ing] a tremendous amount of effort” on behalf of clients who have the full weight of the government thrown up against them – often with the government’s view that the case is open and shut, or “simple” – is our calling as public defenders and defense attorneys. We all have our different reasons for doing it, but it’s a crucial task – for our clients, our system, and ourselves. As Sir Thomas More was said to say in “A Man for All Seasons” in response to his future son-in- law’s exclamation that he’d “cut down every law in England” to get at the devil: “Oh, and when the last law in England was down and the Devil turned round on you – where would you hide, Roper, all the laws being flat?”

I’m proud if “hanging out with Carl Gunn” means not just accepting the government’s view that cases are “simple” and “little,” that issues are “silly,” and that we shouldn’t expend resources on our clients. Hence the name of this blog: “Hanging out with Carl Gunn.” I hope to offer some thoughts and ideas that the government may think are “silly,” but I respectfully don’t; that you can use in cases that the government may think are “simple,” but aren’t so simple when looked at more critically; and that are an entirely appropriate way to expend our resources. And in the spirit of this being a “hanging out” together, there might be guest bloggers from time to time with their “silly” ideas to offer. I hope you find some of the ideas on this blog helpful and offer whatever comments you might have to add to them.